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Tue May 21, 2019, 09:16 AM

'A responsibility to say no': Prosecutors vow not to bring charges under severe abortion laws [View all]

This is more analysis than news.

Morning Mix
‘A responsibility to say no’: Prosecutors vow not to bring charges under severe abortion laws

By Isaac Stanley-Becker, Reporter based in the U.K.
May 21 at 5:36 AM

The facts at first seem unambiguous: A motorist is caught with five pounds of methamphetamines, a Schedule II controlled substance under Utah’s strict drug laws. ... But Sim Gill, Salt Lake County’s district attorney, would decline to pursue such a hypothetical case if he discovered that the search had been unlawful — conducted without a warrant or in the absence of a reasonable suspicion that a traffic law had been breached.

Prosecutors should apply similar discretion, Gill argues, and refuse to bring charges under a wave of new abortion restrictions that plainly contradict Roe v. Wade, the Supreme Court’s 1973 verdict that a woman has a constitutional right to choose whether to bear a child. ... “We do this all the time, deciding that we have an ethical duty not to prosecute a case because it would be in violation of a constitutional protection afforded to citizens,” Gill, a Democrat, said in an interview with The Washington Post. “What’s new here is that this is an area, abortion, that we typically don’t find ourselves in, because the procedure has not been criminalized like this in recent history.”

Now that the question has been decisively transformed into one of criminal law — in his state and others that have banned abortion weeks before the viability threshold set forth in Roe — it’s up to prosecutors to “stand up for institutional integrity in these charged times,” Gill said. ... “We cannot put people in jail for this,” he maintained. ... A similar position has been announced by several district attorneys in Georgia, the site of one of the most searing abortion debates. Over the weekend, the Republican governor, Brian Kemp, scorned calls to boycott the state by “C-list celebrities,” according to the Atlanta Journal-Constitution.

[Gill] knows what his critics are saying about him: that he has overstepped in seeking to undo the will of lawmakers, who have been limiting abortion rights since the Supreme Court, in its 1992 Planned Parenthood v. Casey decision, gave new grounds for states to regulate the procedure. ... Gill sees matters differently. ... “In a participatory democracy, we have our legislators who express what the law ought to be, but legislative expressions don’t happen in a vacuum,” he said. “They happen in a constitutional framework. And I won’t use the authority of my office to enforce a law that is constitutionally suspect as it stands right now.” ... Ultimately, if prosecutions do proceed, the fate of defendants would rest with juries. A century ago, when abortion was a crime, juries regularly refused to convict.

Isaac Stanley-Becker is a reporter on The Washington Post's Morning Mix team. Follow https://twitter.com/isaacstanbecker

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